Citation Nr: 0931261
Decision Date: 08/20/09 Archive Date: 08/27/09
DOCKET NO. 04-35 489 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Oakland, California
THE ISSUE
Entitlement to service connection for a left hip disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. B. Freeman, Associate Counsel
INTRODUCTION
The appellant served in the United States Army National
Guard, from May 6, 1975, to August 18, 1976, and from May 21,
1984, to May 20, 1993, with periods of active duty training
as detailed in the decision below.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 2003 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Oakland, California, which, in pertinent part, denied a
petition to reopen the claim for service connection for a
left hip disorder.
The appellant testified before the undersigned at an August
2008 hearing at the RO. A transcript has been associated with
the file.
The Board determined in a February 2009 decision that
reopening was not required due to the submission of
additional service treatment records. See 38 C.F.R.
§ 3.156(c) (2008). The Board denied six additional claims,
remanding the left hip disorder claim for adjudication on the
merits. The left hip claim now returns for appellate review.
FINDING OF FACT
The appellant does not have a currently diagnosed disorder of
the left hip.
CONCLUSION OF LAW
A left hip disorder was not incurred in or aggravated by
active service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131,
1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board has thoroughly reviewed all the evidence in the
appellant's claims folders. Although the Board has an
obligation to provide reasons and bases supporting this
decision, there is no need to discuss, in detail, the
evidence submitted by the appellant or on her behalf. See
Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000)
(the Board must review the entire record, but does not have
to discuss each piece of evidence). The analysis below
focuses on the most salient and relevant evidence and on what
this evidence shows, or fails to show, on the claim. The
appellant must not assume that the Board has overlooked
pieces of evidence that are not explicitly discussed herein.
See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law
requires only that the Board address its reasons for
rejecting evidence favorable to the appellant).
The Board must assess the credibility and weight of all
evidence, including the medical evidence, to determine its
probative value, accounting for evidence which it finds to be
persuasive or unpersuasive, and providing reasons for
rejecting any evidence favorable to the claimant. Equal
weight is not accorded to each piece of evidence contained in
the record; every item of evidence does not have the same
probative value. When all the evidence is assembled, VA is
responsible for determining whether the evidence supports the
claim or is in relative equipoise, with the appellant
prevailing in either event, or whether a preponderance of the
evidence is against a claim, in which case, the claim is
denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
I. Service Connection
Service connection may be established for a disability
resulting from disease or injury incurred in or aggravated by
active service. 38 U.S.C.A. §§ 1110, 1131. For the showing
of chronic disease in service there is required a combination
of manifestations sufficient to identify the disease entity,
and sufficient observation to establish chronicity at the
time. 38 C.F.R. § 3.303(b). If chronicity in service is not
established, a showing of continuity of symptoms after
discharge is required to support the claim. Id. Service
connection may be granted for any disease diagnosed after
discharge, when all of the evidence establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
As in the prior decision, the Board must clarify certain
matters before progressing to the left hip claim. The
appellant has repeatedly insisted in submissions to the RO
and to her treating physicians that she had active duty from
1984 to 1993. As described in the Introduction, the
appellant was enrolled in the Army National Guard at that
time, and her service was not in active service.
The following information is obtained from a January 1998
memorandum to the appellant from the Army Reserve Personnel
Center and her retirement credits record. She enlisted in
the Army Reserves May 6, 1975, and was discharged from the
Reserves January 1, 1976. During that time period she had 14
days of active duty from August 4 to 17, 1975. She then
enlisted in the Army National Guard on January 6, 1976, and
was discharged August 18, 1976. During that time period, she
had no active duty training and only two days of inactive
duty. She then had no military status from August 19, 1976
to May 20, 1984. She re-enlisted in the Army National Guard
on May 21, 1984, with periods of active duty training from
June 11 to 21, 1984; July 20 to 22, 1984; August 5 to 18,
1984; August 20 to 22, 1984; August 27 to 30, 1984; September
26 to October 2, 1984; April 26 to 28, 1985; June 15 to 29,
1985; and March 15 to 29, 1986. No active duty training was
shown for the remainder of 1986. She continued in the Army
National Guard until May 20, 1989, with periods of active
duty training from September 2 to 4, 1987; September 9 to 10,
1987; September 15 to 18, 1987; September 22 to 25, 1987;
September 29 to 30, 1987; June 11 to 25, 1988; August 12,
1988; and August 15 to 16, 1988.
The above-referenced memorandum shows the appellant was
transferred to the Army Reserves Control Group (REINF) on May
13, 1991. A letter dated in May 1993 to the appellant from
the Army Reserve Personnel Center indicates that as of that
date she was discharged from the Control Group (REINF) to the
Ready Reserve.
"Active service," a prerequisite to service connection, has
been defined to mean "active military, naval, or air
service." 38 U.S.C.A. § 101(2), (24) (West 2002); 38 C.F.R.
§ 3.6(a) (2008). The term "active military, naval, or air
service" includes: (1) active duty; (2) any period of active
duty for training (ACDUTRA) during which the individual
concerned was disabled or died from a disease or injury
incurred or aggravated in the line of duty; and (3) any
period of inactive duty for training (INACDUTRA) during which
the individual concerned was disabled or died from an injury
incurred or aggravated in the line of duty. Id.
Under these provisions, the appellant's National Guard
service was not active duty in the regular armed forces. See
38 C.F.R. § 3.6(a). At most, active or inactive duty for
training periods may be considered "active service," if
"veteran" status is first established. Id.
In order for the appellant to achieve "veteran" status and
be eligible for service connection for disabilities claimed
during her Army National Guard service, the record must
establish that she was disabled during active duty for
training due to a disease or injury incurred or aggravated in
the line of duty or she was disabled from an injury incurred
or aggravated during inactive duty training. See Mercado-
Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v.
Brown, 7 Vet. App. 466, 470 (1995); Biggins v. Derwinski, 1
Vet. App. 474, 478 (1991). Additionally, because the
appellant must establish "veteran" status based on
disability incurred or aggravated in ACDUTRA or INACDUTRA for
the 1984 to 1993 National Guard service, the presumption of
service connection for certain diseases is not available
until such a disability is found to be incurred or
aggravated. See Biggins.
Even though the appellant complains of several conditions for
which presumptive service connection is permitted,
presumptive service connection is unavailable in this case.
See Biggins, supra. The appellant did not have at least 90
days of continuous service during any period of ACDUTRA or
INACDUTRA in the 1980's or 1990's. As such, the presumption
would not be satisfied even if the appellant became service
connected for another disability based on a prior period of
ACDUTRA or INACDUTRA. See 38 C.F.R. § 3.307 (2008). The
Board will not consider presumptive service connection for
the claimed condition.
In order to establish service connection for the claimed
disorder, there must be (1) medical evidence of a current
disability; (2) medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between the
claimed in-service disease or injury and the current
disability. See Hickson v. West, 12 Vet. App. 247, 253
(1999).
The appellant has two alternative contentions regarding her
left hip claim. In a March 2005 statement, she stated that
she tripped over a tent stake during active duty training,
hurting her hip on the left lower side. She claimed that she
sought treatment, but nothing was done for her. In her
testimony before the undersigned, the appellant contended
that her doctor told her that her low back and hip conditions
were related to lifting and three or four damaged discs in
her spine. She further contended that her only significant
lifting occurred during her training periods, as she was
primarily a stay-at-home mother.
The Board acknowledges that the appellant is competent to
give evidence about what she experienced; for example, she is
competent to report that she experiences certain symptoms.
See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994).
Competency, however, must be distinguished from weight and
credibility, which are factual determinations going to the
probative value of the evidence. See Rucker v. Brown, 10
Vet. App. 67, 74 (1997). She is not competent to diagnose
any medical disorder or render an opinion as to the cause or
etiology of any current disorder because she does not have
the requisite medical knowledge or training. See Espiritu v.
Derwinski, 2 Vet. App. 492 (1992). In short, the appellant
can competently testify that she fell and hurt her hip, but
cannot testify that her current disability is the result of
that fall. Similarly, the Board cannot accept her statements
relating her hip pain to her back and from her back to
lifting during service.
The appellant has sought regular treatment for several years
through VA. During October and November 2005, the appellant
was fully evaluated in conjunction with ongoing pain
management. Despite several evaluation and physical therapy
sessions, there was no mention of a left hip disorder on the
active problems list or in the specific notes from the
sessions. On October 18, 2005, the appellant was given an
evaluation which addressed her low back disability. The left
hip was included in the evaluation. Straight leg raise on
the left side was limited to 30 degrees by her back pain.
The appellant had tenderness to palpation in the left
sacroiliac joint. The appellant was very sensitive and
unable to complete the tests. A February 2005 evaluation was
also performed at the appellant's request. The appellant was
noted to be a poor historian of her medical history. The
appellant's complaints at the examination were bladder and
low back related. The left hip did not appear on the active
problem list, nor was it found on physical exam. From
November 2006 to January 2007, the appellant underwent a
course of electroacupuncture treatment for her lower back
pain. Needles were placed along the lumbar vertebrae,
running down into the gluteal muscles. There is no notation
of a left hip problem
A September 2006 pain management note indicates that the
appellant has radiating pain from the lower back down the
legs to the feet in the L5 nerve distribution. While this
creates pain in the left hip, it is a lower back disability.
Despite treatment in the anatomical region, the appellant's
VA medical records do not show any specific disability of the
left hip. While the appellant is competent to report pain,
even ongoing pain, she cannot diagnose a disorder. Pain
alone, without a diagnosed or identifiable underlying malady
or condition, does not in and of itself constitute a
disability for which service connection may be granted. See
Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal
dismissed in part, and vacated and remanded in part sub nom.
Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001).
The Board finds that the medical records outweigh the
appellant's testimony. The preponderance of the evidence
shows that there is no currently diagnosed disorder of the
left hip. Service connection for a left hip disorder on a
direct basis is not warranted. The Board denied entitlement
to service connection for a low back disorder in the February
2009 decision, which also remanded this claim. As such,
service connection for the left hip due to a low back
disability is not warranted as a matter of law. See
38 C.F.R. § 3.310 (2008).
As such, the Board finds that the preponderance of the
evidence is against the appellant's service connection claim.
Consequently, the benefit-of-the-doubt rule does not apply,
and the claim must be denied. 38 U.S.C.A. § 5107(b) (West
2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
II. Veterans Claims Assistance Act (VCAA)
VA has met all statutory and regulatory notice and duty to
assist provisions as to the appellant's claim for service
connection. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5106, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R. §§
3.102, 3.156(a), 3.159, 3.326 (2008).
Under the VCAA, when VA receives a complete or substantially
complete application for benefits, it is required to notify
the claimant and her representative, if any, of any
information and medical or lay evidence that is necessary to
substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002);
38 C.F.R. § 3.159(b) (2008). The United States Court of
Appeals for Veterans Claims (Court) held that VA must inform
the claimant of any information and evidence not of record
(1) that is necessary to substantiate the claim; (2) that VA
will seek to provide; and (3) that the claimant is expected
to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002).
The Court observed that a claim of entitlement to service
connection consists of five elements, of which notice must be
provided prior to the initial adjudication: (1) veteran
status; (2) existence of a disability; (3) a connection
between the veteran's service and the disability; (4) degree
of disability; and (5) effective date. See Dingess v.
Nicholson, 19 Vet. App. 473, 490 (2006); see also 38 U.S.C. §
5103(a). Compliance with the first Quartuccio element
requires notice of these five elements. See id.
Prior to initial adjudication of the appellant's claim, a
letter dated in January 2003 fully satisfied the duty to
notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. §
3.159(b)(1); Quartuccio, at 187. Notice was renewed in a
February 2005 letter, followed by numerous readjudications of
the claim by the RO. That notice did not provide elements
four and five as required under Dingess. Since the Board has
concluded that the preponderance of the evidence is against
the claim for service connection, any questions as to the
appropriate disability rating or effective date to be
assigned are rendered moot, and no further notice is needed.
See Dingess, supra.
The Board also concludes VA's duty to assist has been
satisfied. The appellant's service treatment records and VA
medical records are in the file. Private medical records
identified by the appellant have been obtained, to the extent
possible. The appellant's Social Security Administration
records have been associated with the file. The appellant
sent in authorized release forms for several doctors,
including Dr. Scalapino, Drs. Wong and Reilly, Dr. Weather,
Dr. Smith-Nash and Dr. Starkes which expired before any
records were obtained. The appellant was notified of the
problem in February 2007 and provided the opportunity to
submit the records herself or provide a new authorized
release form. The appellant did not respond. The Board
notes that the duty to assist is not a "one way street,"
and that when, as in the instant case, it is the appellant
that has the "information that is essential in obtaining the
putative evidence," the appellant cannot "passively wait"
for the assistance of the VA. Wood v. Derwinski, 1 Vet. App.
190, 193 (1991). The Board is satisfied that the records
adequately identified and released to VA were obtained. No
further efforts are necessary.
The duty to assist also includes providing a medical
examination or obtaining a medical opinion when such is
necessary to make a decision on the claim, as defined by law.
The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006),
held that an examination is required when (1) there is
evidence of a current disability, (2) evidence establishing
an "in-service event, injury or disease," or a disease
manifested in accordance with presumptive service connection
regulations occurred which would support incurrence or
aggravation, (3) an indication that the current disability
may be related to the in-service event, and (4) insufficient
evidence to decide the case.
The appellant's VA treatment records from 2005 to 2007
reflect treatment of lower back and abdomen down through the
legs. There is no indication that the appellant has a
disability of the left hip. The appellant had ample
opportunity to mention the left hip and identify any ongoing
complaints. She did not do so. As these examinations are
current, thorough, numerous and focus on the affected area,
the Board finds that the preponderance of the medical
evidence is against a current diagnosis of the claimed
disorder. An examination is not required. See McLendon,
supra.
As there is no indication that any failure on the part of VA
to provide additional notice or assistance reasonably affects
the outcome of this case, the Board finds that any such
failure is harmless. See Newhouse v. Nicholson, 497 F.3d
1298 (2007).
ORDER
Entitlement to service connection for a left hip disorder is
denied.
____________________________________________
MICHELLE L. KANE
Chief Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs